Court berates HR execs for siding with underling and sacking leader

A court has lambasted HR executives who “put their heads in the sand” and sacked a senior executive for exercising his right to complain.

A court has lambasted HR executives who “put their heads in the sand” and sacked a senior executive for exercising his right to complain.

The judge said they had “fobbed him off” when they ignored his legitimate concern about an underling’s behavior, instead unfairly siding with the underling.

The facts

Andrew Keenan had worked for the multinational company Cummins Group for more than 34 years, when he was sacked for “performance issues” in 2015.

He began work as a technical engineer apprentice in the UK and had worked his way up to the role of South Pacific and South-East Asia regional leader. The role had a salary of $198,200. He had accrued nearly $106,500 in long service leave by the time he was dismissed.

In this role he oversaw 60 employees. One of those was the South Pacific and South-East Asia HR leader. The two had issues in their working relationship almost immediately.

Mr Keenan received a complaint from Cummins' Europe, Middle East and Africa HR manager regarding typos and formatting errors in a presentation prepared by the South Pacific and South-East Asia HR leader. He informed the HR leader that she should have disclosed the fact that she had authored the presentation to ensure any criticism was directed at her.

Soon after, the South Pacific and South-East Asia HR leader asked to accompany Mr Keenan on work-related trip to Singapore. When he refused, she approached the global HR manager without Mr Keenan’s knowledge or approval.

Later, Mr Keenan sent an email to the global HR manager requesting she provide a copy of the HR leader’s 2013 review and stakeholder feedback. The global HR leader told him to ask the South Pacific and South-East Asia HR leader directly so that she could “coach and support” him in his new role, instructing him to include her in any management decisions.

Soon after, the South Pacific and South-East Asia HR leader was in a disagreement with another colleague. After consulting a third party Mr Keenan sided against the HR leader and with the colleague. The HR leader was enraged by his decision and questioned his right to consult other sources.

Mr Keenan approached the global HR manager about the South Pacific and South-East Asia HR leader’s difficult behaviour. Complaints included her unwillingness to accept responsibility and escalating issues prematurely.

According to Mr Keenan, the global HR manager responded to his email in a teleconference, excusing the South Pacific and South-East Asia HR leader on the basis that she was “just more touchy feely.” He was also told he should reflect on his own management style.

In April 2015, the global HR division informed Mr Keenan that he was not good enough for his role. He was given six months to find another job within the organisation. He sought assistance in finding a new role.

In May 2015, the global HR leader lodged an ethics case against him, claiming he had failed as a leader, and in breach of company policies.

He was dismissed for supposed “performance issues” in November 2015.

Mr Keenan has since worked periodically as an Uber driver, earning just $15,000 a year.

The law

Mr Keenan sought relief under the Fair Work Act on the grounds that Cummins took adverse action against him, contravening s340 and dismissing him for exercising a workplace right.

In issue

The issues to be determined were whether the respondent took adverse action against Mr Keenan and, if so, whether the adverse action resulted from Mr Keenan exercising his workplace rights.

Arguments

Mr Keenan argued that the internal investigation into his conduct, a proposed dismissal, and suspension of his employment all constituted adverse action on the part of Cummins.

He claimed the ethics complaint was exercised in a manner that was unfair and in breach of the Fair Work Act. Cummins claimed the lack of cooperation between Mr Keenan and a to be a reflection of Mr Keenan’s poor management skills.

Cummins denied all alleged contraventions, contending none of the relevant decision-makers’ actions were motivated by Mr Keenan exercising his rights to voice concerns about his employee.

The company argued it was not required to pay Mr Keenan long service leave because he was mainly based overseas.

Considerations

The Federal Circuit Court of Australia decided “on the balance of probabilities” that the company had taken adverse action against Mr Keenan.

It was reasoned that HR executives unfairly blamed Mr Keenan for the poor relationship between him and the South Pacific and South-East Asia HR leader. The HR global manager had unfairly sided with the underling when she should have sided with Mr Keenan as the leader.

According to the judge, there was nothing wrong with Mr Keenan taking issue with an inferior employee who refused to recognise her proper place in the corporate hierarchy.

The judge stated the HR leader was uncooperative and an “unwarranted thorn” in Mr Keenan’s side. He held that Mr Keenan’s superiors should have stepped in quickly and told the HR leader she was overstepping her role. The HR leader was his underling and was required to comply with his lawful directions. The judge rejected the idea that Mr Keenan should have consulted the HR leader regarding management decisions.

It was held that the global HR manager failed to show an even-handed approach, abandoning support for the regional leader, and preferring instead to support the underling.

The judge believed the criticism directed at Mr Keenan regarding the presentation created by the HR leader, despite its positive intent, was “scarcely appropriate” in its being directed to someone of his seniority and was evidence of “a high degree of micromanagement.”

Decision

Judge found Cummins to be in breach of s340. It ruled Mr Keenan was entitled to his long service leave in full as well as further compensation and other relief.